BVA9503512 DOCKET NO. 92-15 742 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to separate disability ratings for a ventral hernia and postoperative xiphoiditis. 2. Entitlement to a disability evaluation in excess of 20 percent for a ventral hernia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James L. March, Associate Counsel INTRODUCTION The veteran had active service from August 1973 to December 1985. This appeal comes to the Board of Veterans' Appeals (Board) from a December 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In December 1993, the Board remanded the case for further development. Specifically, the Board requested the RO to adjudicate the issue of entitlement to a temporary total disability evaluation based on convalescence. However, in October 1993, while the case was at the Board, the RO granted this benefit. Although the representative argues this issue in his January 1995 written argument, the issue is moot. In January 1994, the RO denied service connection for post- traumatic stress disorder. In March 1994, the veteran filed a Notice of Disagreement; however, a Statement of the Case was never issued. The RO should develop this issue as appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that separate disability ratings are warranted for a ventral hernia and postoperative xiphoiditis. In essence, he states that these disabilities are distinct and that the symptomatology for each do not overlap. He further contends that a 20 percent disability evaluation is not adequate for his ventral hernia. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for separate disability ratings for a ventral hernia and postoperative xiphoiditis, and against the claim for a disability rating in excess of 20 percent for a ventral hernia. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The symptomatology of both the xiphoiditis and ventral hernia is duplicative--pain. 3. The veteran's ventral hernia is manifested by tenderness, and there is no indication for a supporting belt. 4. No unusual or exceptional disability factors have been presented. CONCLUSIONS OF LAW 1. Separate disability ratings for a ventral hernia and postoperative xiphoiditis are not warranted. 38 C.F.R. § 4.25(b) (1993). 2. The criteria for an evaluation higher than 20 percent for a ventral hernia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.114, Diagnostic Code 7339 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claims are plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all available relevant evidence has been obtained regarding the veteran's claims, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). The evidence shows that during service, diagnoses of esophageal reflux and esophagitis were made. A Nissen fundoplication was conducted in March 1985, and in May 1985, the veteran returned complaining of pain in the xiphoid region. A diagnosis of xiphoiditis was made, and in July 1985, the xiphoid was excised. In August 1985, the veteran complained of pain at the lower aspect of the surgical wound. There was no sign of infection or masses, but there was tenderness peri-umbilically. A wound exploration revealed incarcerated omental fat which was corrected. A VA examination report dated in March 1986 shows a diagnosis of "[s]tatus post Nissen fundoplication...for hiatus hernia with reflux esophagitis with subsequent wound infection with removal of xiphoid process and repair of small ventral hernia with mild residual." In June 1986, the RO granted service connection for postoperative xiphoiditis with postoperative ventral hernia. A noncompensable disability rating was assigned by analogy to Diagnostic Code 5022 of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (1993). Currently, a 20 percent disability rating is in effect for ventral hernia, postoperative, and xiphoiditis, postoperative. The disability is currently rated under Code 7339 of the Rating Schedule. I. Separate ratings The veteran argues that the ventral hernia and xiphoiditis should be rated separately. However, the RO, citing 38 C.F.R. § 4.14 (1993), determined that rating these disabilities separately would constitute pyramiding. Except as otherwise provided in the Rating Schedule, the disabilities arising from a single disease entity, are to be rated separately. 38 C.F.R. § 4.25(b). One exception is the antipyramiding provision of 38 C.F.R. § 4.14, which states that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. See Fanning v. Brown, 4 Vet.App. 225, 230 (1993), and Esteban v. Brown, 6 Vet.App. 259, 261 (1994). In those cases, the United States Court of Veterans Appeals (Court) held that it is possible for a veteran to have separate and distinct manifestations from the same injury permitting two different disability ratings. Fanning at 231; Esteban at 261. In Fanning, the Court remanded the case because the Board failed to provide reasons or bases for denying separate ratings due to pyramiding. However, in Esteban, the Court held that separate ratings were in order for three facial problems arising out of the same injury--disfiguring scars, painful scars, and facial muscle damage. The Court pointed out that "none of the symptomatology for any one of these three conditions is duplicative of or overlapping with the symptomatology of the other two conditions." Id. at 262 (emphasis in original). Here, numerous VA outpatient records, private records and VA compensation and pension examination reports have been submitted. All of the complaints concerning the postoperative xiphoiditis and ventral hernia are of pain. Indeed, the only alleged manifestation of either is pain. As such, the symptomatology of the two disabilities is duplicative, and, therefore, separate disability ratings are not warranted. II. Increased rating for ventral hernia In accordance with 38 C.F.R. §§ 4.1, 4.2 (1993) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of his service-connected ventral hernia, and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. Disability ratings are determined by applying the criteria set forth in the VA Rating Schedule, found in 38 C.F.R. Part 4 (1993). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.10 (1993). A VA examination report dated in December 1991 indicates that the there was a nine-inch midline scar extending from the sternum to just past the umbilicus. There was a defect in the lower portion of the wound and in the umbilical area, with slight herniation when the veteran got off the examination table. He complained of pain on palpation. In March 1992, a hearing was conducted before a hearing officer at the RO. The veteran testified that his ventral hernia was very painful, and he alleged that his entire abdominal wall was affected. He stated that he was unable to lift anything without the ventral hernia bulging, and he indicated that the pain lasted for two hours. He also alleged that he was unable to work because of the hernia. Private and VA medical records reveal that the veteran was seen on numerous occasions complaining of abdominal pain. In July 1993, the veteran had surgery to repair the abdominal wall incisional hernia at Community Memorial Hospital in Winona, Minnesota. He had a rather uneventful repair. A VA examination was conducted in November 1993. The veteran complained of a massive ventral hernia; however, no hernia was observed on examination. In January 1994, the veteran was seen at the VA Outpatient Clinic complaining of abdominal pain. This was attributed to the July 1993 surgery. He described the pain as constant and involving his entire trunk. He had both sharp pains and feelings of fullness, and he experienced hot flashes and dizziness with the pain. In February 1994, the veteran was seen again as an outpatient complaining of abdominal pain. Examination of the abdomen revealed tenderness to light touch over the scar tissue going from the xiphoid to his umbilicus. There was normal sensation in the lateral abdomen, and there was no evidence of continued herniation. Another VA examination was conducted in May 1994. Again, the veteran complained of constant pain of scar tissue and in the xiphoid region. The examination revealed a ten inch midline scar, with absence of the xiphoid. The diagnoses included large ventral hernia, recently repaired with residual pain. In June 1994, the veteran was examined again. The examiner noted that there was no evidence of ventral hernia on examining the abdomen. It was noted in the assessment that the veteran had a postoperative incisional pain syndrome, without objective findings of recurrent ventral hernia. He did, however, have definite tenderness at the lower end of the sternum. Under the provisions of the Rating Schedule, a 20 percent evaluation is warranted for a small postoperative ventral hernia which is not well supported by a belt under ordinary conditions, or a healed ventral hernia or postoperative wound with weakening of the abdominal wall and indications for a supporting belt. A 40 percent evaluation requires a large ventral hernia which is not well supported by a belt under ordinary conditions. 38 C.F.R. Part 4, Code 7339. Here, there is no objective evidence of a ventral hernia. The VA examinations from November 1993 and May and June 1994 indicated that there was no herniation present. The veteran's only complaint was tenderness. As there is no evidence of a large ventral hernia, not well supported by a belt, the criteria for a 40 percent rating have not been met. Finally, the Board notes that no unusual or exceptional disability factors warranting extraschedular consideration have been presented. 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to separate disability ratings for postoperative xiphoiditis and ventral hernia is denied. Entitlement to a disability evaluation in excess of 20 percent for ventral hernia is denied. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.